IN THE CASE OF:	

		BOARD DATE:	  23 July 2009

		DOCKET NUMBER:  AR20090002660 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) be corrected to show proof of his promotion to sergeant/pay grade E-5, all of his medals and awards, his U.S. Army Reserve (USAR) units, and his units in the Republic of Vietnam.

2.  The applicant states that this information is missing from his DD Form 214.

3.  The applicant provides through his Congressman a copy of his DD Form 214 with a separation date of 23 December 1971 in support of his application.  He also submits a copy of a letter he submitted with a Congressional inquiry in 1990. 
In that letter he stated that he joined an Army Reserve unit in 1984 and then reenlisted in 1987 for 6 years.

	a.  In June 1988, he was informed by his noncommissioned officer chain of command that there was an administrative error on his reenlistment document, that he was reassigned from the motor pool to the communications section, and that he would not be going to a specific military occupational specialty school as promised.  The applicant was disturbed and sought assistance from his chain of command up to his command sergeant major.  He verbally requested to be released from his Army Reserve unit, turned in his field training equipment, and attempted to turn in his identification card.  He left the unit with a verbal understanding that he was no longer in the unit.

	b.  In September 1990, the applicant attempted to reenlist in the USAR and was informed that he was separated as an unsatisfactory participant and demoted to specialist/pay grade E-4.

	c.  In October 1990, the applicant sought assistance from the Army Reserve Personnel Center (ARPERCEN), St. Louis, MO.  The noncommissioned officer career counselor informed the applicant that he had been released from the Army Reserve in February 1990 and recommended that he return to his former unit to correct his record.

	d.  The applicant returned to his former Army Reserve unit administrative offices and viewed a unit copy of a request for transfer that did not contain his personal signature, rather his name was typed in the line that required his signature.  During this period, he sought assistance from his chain of command and states he did not receive support to correct this injustice.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show that the applicant enlisted in the Regular Army on 28 May 1970 for a 2-year period of service.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  There is no history of the applicant's units of assignment during his active duty period available for the Board to review nor is there a record of his duty performance.  Item 12 (Last Duty Assignment and Major Command) of the applicant's DD Form 214 shows that his last unit of assignment was Company B, 4th Battalion, 30th Infantry, Fort Sill, OK.

4.  On 23 December 1971, records show the applicant was honorably separated due to a phase-down release of first term personnel and transferred to the USAR Control Group (Annual Training).  At the time of separation, the applicant's DD Form 214 shows that he held the rank of specialist/pay grade E-4.  The applicant served in the Republic of Vietnam for 10 months and 13 days.  He was awarded the Bronze Star Medal for meritorious achievement in ground operations against hostile forces during his combat tour in the Republic of Vietnam, the Combat Infantryman Badge, the Air Medal, the Vietnam Service Medal, and the Vietnam Campaign Medal.

5.  In April 1974, the applicant transferred from the USAR Control Group (Annual Training) to the 757th Maintenance Company in San Antonio, TX.  His duty MOS as shown on his record was 63B (Wheeled Vehicle Mechanic).

6.  On 4 April 1976, the applicant extended his enlistment contract, dated 28 May 1970, for 1 year.

7.  On 20 March 1977, the applicant extended for an additional year, extending his expiration of term of service to 27 May 1978.

8.  On 19 February 1978, the applicant reenlisted in the Army Reserve for a 
3-year period of service in pay grade E-4.  He acknowledged that he was obligated to attend at least 48 training assemblies per year and serve on active duty for training at least 15 days per year.

9.  On 14 February 1981, the applicant reenlisted in the Army Reserve for a       3-year period in pay grade E-5.  Records show the applicant's unit of assignment from on or about 1 January 1975 to on or about 18 February 1981 was the    757th Maintenance Company.

10.  On 19 February 1981, the applicant was assigned to Headquarters and Headquarters Company, 694th Maintenance Battalion, San Antonio, TX.

11.  Headquarters, 694th Maintenance Battalion, Orders Number 1-8, dated 1 January 1983, laterally appointed the applicant to sergeant/pay grade E-5 and terminated his appointment as a specialist five/pay grade E-5.  His records show his date of rank to pay grade E-5 as 30 May 1978.

12.  ARPERCEN Orders C-05-903536, dated 24 May 1984, transferred the applicant to the 114th Evacuation Hospital effective 25 February 1984.

13.  On 18 February 1987, the applicant reenlisted in the USAR for a 6-year period of service in pay grade E-5.  He acknowledged the rules governing satisfactory participation that included attending 48 scheduled unit training assemblies unless excused by proper authority; accrual of 9 or more unexcused absences during any continuous 365 day period could result in discharge as an unsatisfactory participant; annual active duty for training of not less than 14 days per year; if residence is changed to a distance that does not permit continued participation in assigned unit, entitlement to 90 days of excused absence from training, and within the 90 days of relocating he must locate and join an Army Reserve unit; keeping his commander advised of his current mailing address so as to receive official correspondence; replying to and complying with all official orders and correspondence; and failing to participate satisfactorily may result in removal from the unit of assignment and transfer to the Individual Ready Reserve under other than honorable conditions.

14.  On 18 June 1988, records show the applicant cleared his unit of assignment and turned in his toolbox.

15.  On 19 June 1988, the applicant requested an excused absence from his regularly scheduled monthly unit training assembly.  Records show the company commander did not authenticate the applicant’s request or render a decision.

16.  On 11 July 1988, the applicant initiated and authenticated in his own hand a DA Form 4651 (Request for Reserve Component Assignment or Attachment) requesting a voluntary transfer to the USAR Control Group (Reinforcement) with a requested effective date of 1 August 1988.  The home address on this form shows 4__ O___y, San Antonio, TX.

17.  On 14 July 1988, the commander of the 341st Medical Group, Seagoville, TX, returned the applicant's request to his unit commander stating the request was incomplete and required a separate letter from the unit commander stating why the applicant was seeking an early release from his enlistment obligation.

18.  On 20 September 1988, Captain John T____, the unit commander, prepared a memorandum of recommendation for his higher headquarters stating he had spoken to the applicant.  He states, in effect, that the applicant had a civilian work conflict and had problems complying with his USAR commitment.  He states that the applicant had far surpassed his statutory obligation with over 18 years of service to include active duty and service in the Republic of Vietnam. 
He recommended approval of the applicant's request to transfer to the Individual Ready Reserve as an exception to policy.

19.  On 22 September 1988, the applicant's request for transfer was received and authenticated by a representative acting on behalf of the 807th Medical Brigade commander.  A memorandum under the signature of the Strength Management Officer, 807th Medical Brigade, shows that there was insufficient documentation to support the applicant's request to transfer to include no documentation to show that an alleged work conflict existed from either the applicant's employer or what alternatives the unit commander had explored to resolve the conflict.  In conclusion, the memorandum states that after adequate investigation by the applicant's unit, if the conflict could not be resolved, then the request could be returned for consideration as an "exception to policy."

20.  On an unknown date between 22 September 1988 and 13 September 1989, the 114th Evacuation Hospital changed company commanders with Captain John T____ departing and Captain Judith R____ assuming command.  During their change of command, the two officers were required to conduct a personnel asset inventory (PAI) to account for all personnel on the personnel unit manning roster.  Also during this period there are no records to show that the applicant participated in monthly unit training assemblies or unit annual training.

21.  On 13 September 1989, the applicant was notified by certified mail that he had accrued five unexcused absences from scheduled unit training assemblies on 8, 9 and 10 September 1989.   This letter was signed by the unit commander, Captain Judith R____.  The address on the envelope was 6___ I___m Road, #1325, San Antonio, TX.  The applicant did not receive this certified letter for it was returned to the unit as undeliverable mail with no forwarding address.

22.  On 16 October 1989, the applicant was notified by certified mail that he had accrued four unexcused absences for scheduled unit training assemblies on 7 and 8 October 1989 and that he had a total of nine unexcused absences.  This letter was signed by the unit commander, Captain Judith R____.  The address on the envelope was 6___ I___m Road, #1325, San Antonio, TX.  The applicant did not receive this certified letter for it was returned to the unit as undeliverable mail with no forwarding address.

23.  On 19 October 1989, the applicant was notified by certified mail that he had accumulated nine or more unexcused absences within a 1 year period.  The letter declared him an unsatisfactory participant and said he would be transferred to the Individual Ready Reserve for the balance of his service obligation.  The letter further stated that the applicant was not required or authorized to attend any future unit training assemblies or annual training.  This letter was signed by the unit commander, Captain Judith R____.  The address on the envelope was 6___ I___m Road, #1325, San Antonio, TX.  The applicant did not receive this certified letter for it was returned to the unit as undeliverable mail with no forwarding address.


24.  On 28 October 1989, records show the applicant was reduced from sergeant/pay grade E-5 to specialist/pay grade E-4 with a date of rank of 19 May 1971.

25.  On 23 February 1990, Headquarters, 807th Medical Brigade, Orders Number 11-14 reassigned the applicant to the USAR Control Group (Reinforcement) effective 23 February 1990.  The reason for reassignment was unsatisfactory participation.  The applicant’s address as shown on this order was 6___ I___m Road, #1325, San Antonio, TX.

26.  On 12 December 1995, ARPERCEN Orders Number D-08-908235 honorably discharged the applicant from the USAR.

27.  On 14 November 2008, records show that a DD Form 215 (Correction to DD Form 214) corrected the applicant’s DD Form 214 with a separation date of 23 December 1971 to show the following awards:  the Bronze Star Medal, the Army Good Conduct Medal, the Vietnam Service Medal with two bronze service stars, the "Army Reserve Components Achievement Medal W 1 (OLC)," the Army Service Ribbon, the Republic of Vietnam Campaign Medal with Device (1960), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Machine Gun Bar, and the Marksman Marksmanship Qualification Badge with Pistol Bar.

28.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that all units in Vietnam were awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation based on Department of the Army General Orders Number 8, dated 1974.

29.  Army Regulation 635-5 (Separation Document) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  In establishes standardized policy for the preparation of the DD Form 214.  In pertinent part, it states that the DD Form 214 is a synopsis of the Soldier’s most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement, or discharge.  It also states that a Soldier’s last duty assignment will be entered on this form.

30.  Army Regulation 135-91 (Army National Guard and Army Reserve Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement Procedures) states, in pertinent part, that troop program unit 

Soldiers are required to participate in at least 48 scheduled inactive duty training (IDT) assemblies and not less than 14 days of annual training per year.  Satisfactory participation is defined as attending all scheduled IDT unless excused by the unit commander or granted a leave of absence.  Soldiers who do not receive credit for attendance will be charged with an unexcused absence.

31.  Additionally, the regulation states a Soldier may be excused from scheduled IDT or annual training when sickness, injury, or some other circumstance beyond the Soldier's control caused the absence.  All other situations not specifically identified are considered unexcused absences.  A Soldier excused for reasons cited above may be required to document the reason for the absence.  If the unit commander requires this evidence, the Soldier will normally be notified within 14 days of the absence.  Evidence submitted by the Soldier will be in the form of an affidavit when the absence was beyond the Soldier's control.  Absence caused by sickness or injury requires certification from a physician or medical officer.  The Soldier must furnish the required evidence within 15 days of the commander's request.  At the discretion of the appropriate commander, a Soldier may be scheduled to make up the excused absence.

32.  Army Regulation 135-91 defines unsatisfactory participation as (1) when ordered to active training if the Soldier fails to attend or complete the entire period of active training without proper authority; and (2) if required to attend 48 IDT assemblies, Soldiers accrue 9 or more unexcused absences in any 
1-year period.

33.  Army Regulation 600–8–6 (Personnel Accounting and Strength Reporting) provides, in pertinent part, that unit commanders will conduct a PAI in a physical muster formation during a change of command.  The objective of the PAI is to maintain timely, error-free personnel strength accounting within Army units at the company or equivalent level and to involve commanders at all levels in the strength accounting and reporting process.  Accurate personnel strength data is required at all command levels to establish personnel policies and procedures; to manage the Army’s personnel distribution system; and to report accurate personnel strength data to Congress.  Accountable strength is the number of all Soldiers assigned or attached to a unit regardless of their duty status.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214 with a separation date of 23 December 1971 should be corrected to show his promotion to sergeant/pay grade E-5.  Upon separation from active duty, the applicant's rank was specialist four/pay grade E-4.

2.  There are no permanent orders to show that during this period of active duty he was promoted to sergeant/pay grade E-5.  It appears he was promoted to Specialist Five on 30 May 1978, after he separated from active duty.  Therefore, the applicant's DD Form 214 correctly reflects his rank and grade upon separation.

3.  The applicant contends that his DD Form 214 does not show all his medals and awards.  The evidence of records shows that he was issued a DD Form 215 correcting his DD Form 214 to show his awards and medals in 2008.  The DD Form 215 also includes an award he was not eligible for until he separated from active duty -- the Army Reserve Components Achievement Medal.  A review of the evidence shows he is entitled to one award not recorded on his DD Form 214 or DD Form 215.  General orders authorized all units in Vietnam award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, the applicant is entitled to have his DD Form 214 corrected to show award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

4.  The applicant contends that his DD Form 214 does not show all his units of assignment when he served on active duty.  Regulatory guidance requires that the last active duty unit of assignment should be entered on the separation document, not all active duty assignments.  The evidence of record shows the applicant's last active duty unit of assignment and its major command are properly recorded on his DD Form 214.  Therefore, he is not entitled to have his records corrected to show all his active duty units of assignment.

5.  The applicant contends his Army Reserve units of assignment should be recorded on his DD Form 214.  The DD Form 214 is a record of active duty service and is prepared upon the expiration of term of service or termination of service.  As such, the applicant is not entitled to have his DD Form 214 corrected to show his Army Reserve units of assignment.

6.  The applicant, through his Congressman, expressed his contention that he was demoted to specialist four and would like his rank to sergeant reinstated.  The evidence of record shows that he was promoted to the rank of sergeant while an active member of the USAR assigned to a troop program unit.  The evidence further shows he was an unsatisfactory participant in his last Army Reserve unit for a 3-month period, or 12 unit training assemblies.  Records show he was administratively notified through certified mail of his nine unexcused absences.  In the commander's letter, she stated that the applicant would be reduced to specialist four/pay grade E-4 due to his unsatisfactory participant 

status and involuntarily transferred to the USAR Control Group (Reinforcement).  As the applicant did not respond to her notifications, the commander reduced the applicant to specialist four/pay grade E-4 and transferred him as an unsatisfactory participant to the USAR Control Group.

7.  However, there are mitigating circumstances and evidence of record that shows the applicant moved, notified his unit, and provided them with his new mailing address.  The applicant never received the commander's notification letters that his attendance was recorded as unexcused and that he was declared an unsatisfactory participant.  The original notification letters and their certified mail envelopes were found in the applicant's record.  The envelopes were stamped as undeliverable, forwarding address unknown.  It appears unit personnel never took the applicant's new mailing address and updated unit rosters and records to show his new address.  Even though the commander attempted to follow procedure and administratively notify the applicant of his pending demotion and unsatisfactory participant status, the applicant did not receive her notifications.  Therefore, the applicant could not respond to her communications for he never received them.  All notification letters were returned by the U.S. Postal Service as undeliverable.

8.  The evidence of record shows mitigating factors that contributed to the applicant's demotion and unsatisfactory participant status.  The evidence shows the applicant notified his unit commander that he had a civilian work conflict and he requested a transfer to the USAR Control Group by initiating the appropriate request form on 11 July 1988.  Due to administrative delays in the processing of his transfer request, the applicant remained on the unit manning roster.   The unit underwent a change of unit commanders which required the outgoing and incoming commanders to jointly account for all Soldiers on the unit manning roster by conducting a physical muster or PAI.

9.  In the process of conducting the audit of the personnel unit manning roster, it was determined that the applicant was not transferred out of the unit as he had requested.  Therefore, the new incoming commander complied with established USAR attendance policies on 13 September 1989, nearly 14 months after the applicant requested a transfer.  Hence, the applicant remained on the personnel unit manning report for 14 months with his attendance status unknown until the PAI was conducted.

10.  The applicant is a distinguished and decorated war Veteran.  He was awarded the Bronze Star Medal, the Combat Infantryman Badge, and the Air Medal.
 
11.  Therefore, as a matter of justice it would be fair and equitable to correct the applicant's record to show:

	a.  that he was not demoted to specialist four/pay grade E-4 on 28 October 1989 by voiding Orders 9-10, published by the 114th Evacuation Hospital;

	b.  that Orders 11-14, dated 23 February 1990, published by Headquarters, 807th Medical Brigade, that show he was involuntarily transferred to the USAR Control Group (Reinforcement) due to unsatisfactory participation were voided, and

	c.  that the applicant was voluntarily transferred to the USAR Control Group (Reinforcement) effective 22 September 1988.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

_____x___  _____x___  ____x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  revoking of Orders 9-10, dated 28 October 1989, published by the 114th Evacuation Hospital;

	b.  revoking of Orders 11-14, dated 23 February 1990, published by Headquarters, 807th Medical Brigade;

	c.  showing the applicant was voluntarily transferred to the USAR Control Group (Reinforcement) effective 22 September 1988; and

	d.  amending his DD Form 214 with a separation date of 23 December 1971 to add award of the Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to correcting the applicant's rank, entering all his active duty units of assignment, and including his Army Reserve units of assignment on his DD Form 214 with a separation date of 23 December 1971.



      ____________x_____________
                 CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090002660



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ABCMR Record of Proceedings (cont)                                         AR20090002660



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